Tuesday, January 30, 2018

Saying Goodbye to Chief Wahoo?

A couple years ago, my youngest son was “drafted” onto the Indians Little League team. It was cringeworthy. The name was bad enough (and I’m thankful my alma mater had the good sense to abandon it nearly 50 years ago), but right there on the hat was Chief Wahoo. Needless to say, among the many baseball caps we have in our family, that one hasn’t seen the light of day since the season ended.

Yesterday, the Cleveland team and Major League Baseball announced that they are retiring the logo from uniforms in a year (they had already removed it from in and around the stadium apparently). It’s unclear why it cannot be done sooner, but I’ll give them the benefit of the doubt that manufacturing for next season is already underway and cannot be changed. Good riddance.

Buried in this news is an interesting IP theory and policy tidbit worth discussion. The team is not abandoning the logo altogether. To maintain trademark rights, it will continue to sell Chief Wahoo merchandise in the Cleveland area. That’s right, trademark law is forcing the team to keep selling merchandise with an offensive logo that it claims to no longer be using.

As I discuss below, this is an area where I expect folks will be torn.

On the one hand, you’re hardly giving up use of a repugnant mark when you keep selling it. As a colleague commented sarcastically:
We would totally disavow this logo. We wish we could. But trademark law is making us sell this merchandise at a profit. If we don’t, then we would, you know, totally disavow the mark. What an awful predicament!
This comment has a point. Continuing to profit on an offensive mark while explicitly bear-hugging the right hardly sends the right message. First, the team continues to make money. Second, it makes clear that it is just fine for fans to keep wearing their gear. Is the gear new? Is it old? Does it matter when the stadium is filled with Wahoo caps?

But there is another hand, which I think makes this affair worthy of further comment. If the trademark is truly abandoned, then anyone can use it. The AP article linked above, for example, says that many fans are dedicated to maintaining the logo; they might be able do so if the trademark were abandoned. Thus, if done properly there is some merit to the notion of maintaining trademark rights (and aggressively enforcing them). What might “properly” mean? The bare minimum of sales. Maybe some youth extra small shirts and some socks, the kinds of things that a) won’t sell much, b) won’t be terribly visible when worn, but c) will be enough to keep ownership rights. The key is that that team can maintain rights, limit distribution, and lock out widespread use by others.

This is not the only area where this sort of disagreement appears. A frequent debate is whether pornography should be copyrighted. Many argue that it should not be given protection, and that by limiting protection the incentive to create it will be reduced. Others argue that pornography will be created anyway, and that copyright law limits distribution to less than it would otherwise be without copyright law. This is an old debate; I recall having it with a colleague at my very first academic conference, and I suspect we’d still have it today if the occasion arose. The answer is partially punitively based (that is, we might want to limit protection, even if it has no effect on distribution) or it may be empirically based (that is, we might not know the answer until we can measure the effects one way or the other).

I suspect that the same competing punitive and empirical concerns will animate the decision keep Chief Wahoo around. Time will tell whether the decision to continue selling merchandise serves to limit distribution or whether this is just a half-hearted disavowal that continues to profit the team.

This is Written Description blog, so I would be remiss if I didn’t mention a paper on this topic. For those interested in a more complete discussion of the issues, Chris Cotropia and Jim Gibson (Richmond Law) published The Upside of Intellectual Property’s Downside back in 2010. Here is the abstract:
Intellectual property law exists because exclusive private rights provide an incentive to innovate. This is the upside of intellectual property: the production of valuable goods that society would otherwise never see. In turn, too much intellectual property protection is typically viewed as counterproductive, as too much control in the hands of private rightsholders can create more artificial scarcity than the incentive effect warrants. Such overprotection not only denies the public access to the innovation without a corresponding gain in incentive, but it also retards future innovation by making it more difficult for follow-on innovators to make use of existing products. This is the downside of intellectual property: reduced production and impeded innovation.
This article turns the traditional discussion on its head and shows that intellectual property's putative costs can actually be benefits. It does so by questioning one of the discussion's underlying assumptions: that innovation is always good. This assumption is usually valid, but not always; there are certain industries that society may prefer to suppress. If intellectual property reduces production and impedes innovation in those industries, then its protection would be a net gain for society. We examine a handful of such industries (tax planning, pornography, and others), demonstrate that keeping (or bringing) them under the intellectual property umbrella may be the best way to stifle them - an approach that runs contrary to the scholarly consensus - and thereby describe the circumstances under which intellectual property's downside can become society's upside.

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